Kodavayal Kuni Narayanan vs Lathika

P. Ubaid, J.—A maintenance order obtained by the wife and the minor son under Section 125 Cr. P.C., and further modified and enhanced under Section 127 Cr. P.C. is under challenge in these two revisions brought by the husband. The respondents in the two revisions are the same. The revision petitioner married the first respondent in November 1997, and a son born in the wedlock has now became major. The wife has been residing separately since May 2004. Her grievance is that she was driven out from the matrimonial home by her husband. When he failed to maintain her and the child, and thus abandoned them she brought claim under Section 125 Cr. P.C. for maintenance as MC 9/2007 before the Family Court Kozhikode. The husband entered appearance, and resisted the claim vigorously on the contention that the wife has no reason to live separately and that she has her own income as a qualified teacher.

The trial court conducted enquiry in the proceeding and recorded evidence. The maintenance claim was tried along with OP 147/2006 brought by the husband for divorce. During trial the husband examined himself as PW1, and the wife examined herself as RW1. Ext. B1 document was also marked on the side of the wife. On an appreciation of the evidence the trial court found that the wife had in fact been subjected to mental and physical harassment, and that her refusal to join the husband in matrimony is justifiable. The trial court also found that the wife does not have any job or income, but the husband has sufficient income to maintain his wife and child. Accordingly, the trial court passed orders in M.C. 9/2007 on 21.4.2008 granting maintenance to the wife at the rate of 1,000/- per month, and to the minor son at the rate of 750/- per month. Aggrieved by the said order the husband brought R.P.F.C. 120/2012.

After the disposal of M.C. 9/2007, the wife brought another proceeding against the husband before the Judicial First Class Magistrate Court-II, Perambra under the provisions of the Protection of Women from Domestic Violence Act (PWDV Act). In the said proceeding she obtained many orders including a maintenance order for 1,500/- per month. After obtaining such an order, and without disclosing such an order, the wife brought proceeding under Section 127 Cr. P.C. in the Family Court for enhancement in the amount of maintenance. The said application was received as C.MP 142/2013. In the said proceeding also the husband entered appearance, and made contest on the ground that the wife has her own income, that there has not been change in her circumstances, and that the child does not require huge amount as claimed by him. On trial in the said proceeding, the Family Court found that the amount of maintenance awarded in 2007 requires reasonable enhancement on change in circumstances. Accordingly, the maintenance awarded to the wife was enhanced to 3,000/- per month, and the maintenance awarded to the child was enhanced to 4,000/- per month, by order dated 7.12.2013 in C.MP 142/2013. Aggrieved by the said order the husband has brought RPFC 268/14.

I heard the learned counsel on both sides in the two revisions, and the two revisions are being disposed of by this by common order.

On hearing both sides and on a perusal of the entire case records and materials, I find a woman who had no peace in matrimony with her husband. She has given satisfactory evidence substantiating her case that she had been subjected to harassment by the husband. Anyway now there is no connection between them, and the wife has been residing separately from the husband for years. A petition for divorce brought by him stands dismissed. There is reason to believe that he is not at all interested in matrimony, and he has particularly abandoned his wife and son. In such a factual situation, the wife''s refusal to join her husband in matrimony is quiet justifiable, and there is no doubt that she can claim maintenance under Section 125 Cr. P.C. So factually there is no ground for interference.

Now the question is whether the amount requires interference. The order of maintenance granted under Section 125 Cr. P.C. is challenged by the husband mainly on the ground that the wife has no reason to live separately. On that factual aspect I find that her refusal to join him is justifiable, and I further find that she does not have any job or income of her own. Of course it is true that she is a graduate, but there is no evidence to show that she has any job or income. The husband would contend that she is employed in a school or some parallel institution but it stands not proved. Thus I find that she is a lady without any means, and she is not capable of maintaining herself. 1,000/- per month to the wife, and 750/- per month to the son was ordered long back, in a proceeding brought in 2007. I find no scope for interference in the original order passed by the Family Court under Section 125 Cr. P.C. Thus RPFC 120/2012 is liable to be dismissed.

Now the question is whether the enhancement made by the court below under Section 127 Cr. P.C. is justifiable. 1,000/- granted to the wife in 2007 now stands enhanced to 3,000/- per month, and 750/- per month granted to the child stands enhanced to 4,000/- per month. Such a special enhancement in favour of the son was made on a special consideration of his requirements for education. Anyway, now he has attained majority, and it appears that the father is not very much aggrieved regarding the amount granted to the son under Section 127 Cr. P.C. The main grievance of the husband is regarding the amount granted to the wife by way of enhancement under Section 127 Cr. P.C.

I find that the wife obtained enhancement under Section 127 Cr. P.C. without disclosing the orders obtained by her in the PWDV Act proceeding. 1,500/- per month was granted to her by the learned Magistrate in the said claim. That was granted in addition to what the Family court initially ordered in 2007. Thus the Family Court''s order was considered properly by the learned Magistrate. But subsequently in the proceeding brought by the wife for enhancement of maintenance, she tactfully suppressed the orders obtained by her under the PWDV Act. Without noticing this fact that there is already an order for an additional amount of 1,500/- per month in the PWDV Act proceeding, the Family Court happened to grant 3,000/- per month. In the above factual situation, I find the necessity of some modification in the orders passed by the court below under Section 127 Cr. P.C. in favour of the wife. I find that 2,000/- per month will do justice to the complainant. Thus she will get a total amount of 3,500/- per month; 2,000/- per month under Section 127 Cr. P.C., and 1,500/- per month under the PWDV Act. As stated above, the maintenance awarded to the child does not require interference, because what is granted is for his requirements, and now he has become major.

In the result, RPFC 120/2012 will stand dismissed. But RPFC 268/2014 will stand allowed in part. Accordingly, the maintenance order in favour of the first respondent, enhanced under Section 127 Cr. P.C., will stand modified, and reduced to 2,000/- per month, payable from the date of filing of the petition, as ordered by the trial court. The amount of maintenance granted to the son under Section 127 Cr. P.C. is maintained.